Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dank v Rothfield [2015] NSWCA 193 Hearing dates: 30 June 2015 Decision date: 30 June 2015 Before: McColl JA, Simpson JA, Sackville AJA Decision: 1. Dismiss the application for leave to appeal. 2. The applicant pay the respondent's costs of the application. Catchwords: PRACTICE AND PROCEDURE – pleading of publication in a defamation case struck out for the second time and proceedings dismissed – application for leave to appeal – whether application involves any point of principle – no significant injustice as proceedings will continue against other defendants. Legislation Cited: Defamation Act 2005 (NSW), s 31 Supreme Court Act 1970 (NSW), s 101(2) Cases Cited: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dank v Cronulla-Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 Dank v Nine Network Australia Pty Ltd [2014] NSWSC 1938 Dank v Whittaker (No 1) [2013] NSWSC 1062 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 Webb v Bloch [1928] HCA 50; 41 CLR 331 Category: Principal judgment Parties: Stephen Dank (Applicant) Phil Rothfield (Respondent) Representation: Counsel: R Rasmussen (Applicant) TD Blackburn SC/Ms L Barnett (Respondent) Solicitors: Cambridge Law (Applicant) Ashurst Australia (Respondent) File Number(s): 2014/369941 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2014] NSWSC 1938 Date of Decision: 11 December 2014 Before: McCallum J File Number(s): 2013/92779 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: On 30 June 2015, the Court dismissed an application by the applicant (Dr Dank) for leave to appeal against a decision of a Judge of the Common Law Division (McCallum J) (Primary Judgment). The Court indicated that it would provide reasons later. These are the reasons. 2. Dr Dank is the plaintiff in defamation proceedings commenced on 26 March 2013. The primary Judge struck out the paragraphs in the Further Amended Statement of Claim (FASC) pleading a case against the respondent, the fourth defendant in the defamation proceedings (Mr Rothfield). Her Honour directed that Dr Dank should not have liberty to replead his claim against Mr Rothfield. Accordingly, she dismissed the claim. [1] 3. Dr Dank requires leave to appeal as the Primary Judgment was interlocutory, notwithstanding that the proceedings against Mr Rothfield were dismissed. [2] Background 1. Dr Dank is not a medical doctor but has been described in these proceedings as a "sports scientist". In February and March 2013, allegations were reported in the media that players at the Cronulla Sharks Rugby League Club had been injected with performance enhancing substances usually given to horses. 2. Mr Rothfield is a journalist. He wrote an article published on the front page of the Sunday Telegraph on 10 March 2013. The headline read: "Sharks boss reveals why he sacked staff PLAYERS GIVEN HORSE DRUGS" Dr Dank was not named in that article. However, the article included information provided to Mr Rothfield by Mr Irvine, the former chairman of the Club. 1. That evening the Channel Nine National News broadcast a news item. The broadcast showed Mr Irvine being confronted by journalists and asked about the contents of the Sunday Telegraph article. The broadcast included images of Mr Rothfield speaking on camera. 2. The transcript of the broadcast includes the following passages: "[REPORTER] This morning [Mr Irvine] dropped this bombshell, claiming that in 2011, under the supervision of controversial sports scientist Steven Dank, several Sharks players were injected with TB-500, a banned endurance and muscle repair drug usually given to horses. PHIL ROTHFIELD He insisted the players were injected with these animal hormones or the animal drugs, but didn't have any more detail because he couldn't. [REPORTER] Irvine has apparently signed a confidentiality agreement with ASADA [Australian Sports Anti-Doping Authority], but told News Limited's Phil Rothfield allegations of doping lead to the sacking of four coaching staff members last week, tweeting this – mate, when paid staff fail to report a rogue bloke who is injecting players were [sic] equine substances, I can't help. … PHIL ROTHFIELD I don't think there's any question the board should stand down. This is a massive scandal now, there's also been salary cap issues that have been raised." 1. Dr Dank commenced defamation proceedings in respect of the broadcast against six defendants, as follows: * Cronulla-Sutherland District Rugby League Football Club Ltd (Club) (first defendant); * Nine Network Australia Pty Ltd (Nine Network) (second defendant); * Mr Overton, a television journalist (third defendant); * Mr Rothfield (fourth defendant); * Ms Harris, a television journalist (fifth defendant); and * Mr Irvine (sixth defendant). Dr Dank also instituted separate defamation proceedings against other defendants in respect of different publications. 1. The various proceedings instituted by Dr Dank have been characterised by much interlocutory disputation. As a consequence of the disputation, two defendants (the Club and Mr Irvine) have been removed from the proceedings. The effect of the Primary Judgment is that Mr Rothfield has also been removed as a defendant. 2. Dr Dank's application for leave to appeal is an attempt to restore Mr Rothfield as a defendant in the proceedings. The application is the second occasion on which Dr Dank's pleading against Mr Rothfield has been before this Court. It is a matter of concern that in the period of two years and three months since the proceedings were instituted, disputes concerning the pleadings have not yet finally been resolved. The Proceedings 1. The disputes between Dr Dank and Mr Rothfield concerning the pleadings commenced with the Amended Statement of Claim (ASC) filed by Dr Dank on 8 October 2013. Mr Rothfield, along with the other defendants, filed a motion seeking to strike out portions of the ASC. Strike Out Judgment 1. In a judgment delivered on 6 December 2013 (Strike Out Judgment), McCallum J struck out the claim pleaded in the ASC against Mr Rothfield, but granted Dr Dank liberty to replead. [3] The paragraphs of the ASC struck out by her Honour in the Strike Out Judgment alleged that Mr Rothfield published the defamatory material in the television broadcast. 2. The Strike Out Judgment was not the first time that the primary Judge, in proceedings commenced by Dr Dank, had considered whether a defendant who contributed to a publication, but was not responsible for the entire publication, could be regarded as an original publisher of the whole matter complained of. In an earlier decision in different proceedings, Dank v Whittaker (No 1), [4] McCallum J struck out pleadings to this effect. Her Honour did so on the ground that the pleadings did not establish that the defendants were original publishers of defamatory material within the principles stated by the High Court in Webb v Bloch [5] . 3. In Dank v Whittaker (No 1), McCallum J formulated the relevant principle as follows: [6] "the authorities … establish that, where a person merely contributes material to an article but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form." 1. Her Honour applied that principle in the Strike Out Judgment. She adhered to her view that: [7] "it is not open to a plaintiff in a defamation action to sue every person to whom quotes are attributed in a television broadcast in the hope that, by the end of the interlocutory processes, it will have been established that each such person played a sufficient role in the production of the broadcast to attract liability". Accordingly, her Honour held that, in the absence of particulars as to any basis on which Mr Rothfield should be regarded as an original publisher of the whole of the broadcast, and since he was not a journalist employed by the Nine Network, the pleading against him should be struck out. [8] CA Judgment 1. Dr Dank sought leave to appeal from the Strike Out Decision on the ground, inter alia, that the primary Judge erred in striking out the claim pleaded in the ASC against Mr Rothfield. The Court of Appeal refused to grant leave (CA Judgment). [9] 2. In the CA Judgment, Ward JA pointed out that the Strike Out Judgment held that the ASC did not properly plead a cause of action against Mr Rothfield as an original publisher of the television program because it was not alleged that he had control over the broadcast or had assented to its final form. [10] Ward JA then recounted in detail McCallum J's reasoning in Dank v Whittaker (No 1), which her Honour had applied in the Strike Out Judgment. 3. Counsel for Dr Dank had submitted on the application for leave to appeal from the Strike Out Judgment that McCallum J had erroneously applied a control test to determine whether the pleading properly alleged that Mr Rothfield was the original publisher of the defamatory matter. Ward JA rejected the submission: [11] "The difficulty with these proposed grounds of appeal is that they are predicated on her Honour having applied some new form of control test, whereas, properly understood, what her Honour was doing was applying the test in Webb v Bloch and Thiess [12] ; namely that, for there to be liability as a publisher of defamatory material, the defendant must in some way knowingly 'conduce' and be responsible for the publication complained of. Her Honour was going no further than saying that mere contribution to an article by someone with no control over the publishing process will not ordinarily establish liability as a publisher 'unless he or she has assented to its final form'. Her Honour's comments in Dank v Whittaker (No 1), which were incorporated by reference into her Honour's judgment, made reference not merely to control but also to assent to the publication." 1. Counsel for Dr Dank had also submitted that the fact that Mr Irvine alleged in the conversation with Mr Rothfield that Dr Dank had supplied horse drugs to football players, and the repetition of those allegations by Mr Rothfield in the television program, should have been sufficient to make Mr Rothfield liable as a publisher of the program. Counsel had contended that Mr Rothfield was pivotal to the entire television program since he had been willing to co-operate in the making of it. Ward JA pointed out, however, that insofar as these matters were said to constitute conducing or assenting to the broadcast, they were neither pleaded nor particularised in the ASC. [13] 2. Ward JA continued as follows: [14] "Mr Evatt [counsel for Dr Dank] says that the liberty to re-plead the claim against Mr Rothfield is of no use because that was confined to a re-pleading of the claim with particulars of 'control' of the kind referred to by her Honour. With respect, that appears to misapprehend the import of her Honour's ruling in that regard. Her Honour does not, in my opinion, suggest that Mr Rothfield could only be liable as a joint publisher if he had control over the broadcast. Her Honour makes it clear that if he had no such control then ordinarily the mere contribution of material to the programme will not establish liability as a joint publisher and that what would be necessary would be something further (such as assent to its final form)." The FASC 1. As has been noted, Dr Dank filed the FASC on 16 October 2014. It is not clear why it took over ten months after McCallum J granted leave to replead the case against Mr Rothfield for the fresh pleading to be filed. 2. The FASC contains 17 particulars of the allegation that Mr Rothfield published the defamatory matter in the television program. The particulars specifically referred to in argument on the current leave application are the following: "(x) Late on 10 March 2013 [Mr Rothfield] was interviewed, and filmed by the [Nine Network] its employees, servants and agents and he said during the said interview that Irvine, the Club Chairman, had informed him that several Cronulla-Sutherland football players (The Sharks) had been injected with TB-500, a banned endurance and muscle repair drug usually given to horses under the supervision of [Dr Dank]. [Mr Rothfield] also said in the interview that Irvine had apparently signed a confidential agreement with ASADA and that the allegations of doping led to the sacking of four coaching staff members of the Cronulla-Sutherland Club last week and Tweeted 'when paid staff fail to report a rogue bloke who is injecting players with equine substances, I can't help'. (xi) The words originally said by [Dr Dank] were repeated by [Mr Overton and Ms Harris] in the programme complained of. [Mr Rothfield] also said that Irvine had said that the players were injected with the animal drugs but that he did not have anymore details at that time because he could not. (xii) [Mr Rothfield] knew when he spoke to and was interviewed and filmed by the [Nine Network], its employees, servants and agents that what he said or the substance or effect of what he said would be likely to be repeated and quoted on Channel Nine News and the said words were so repeated … [Mr Rothfield] further knew that his image which had been filmed by the [Nine Network] would also be likely to be shown on the programme complained of and it was so shown …" Primary Judgment 1. McCallum J noted in the Primary Judgment that the FASC had been filed subject to Mr Rothfield's right to argue the adequacy of the particulars provided in support of the claim against him. Her Honour also noted that the pleading in the FASC represented an attempt to bring the case within the principles stated in the CA Judgment, which required something further than had previously been pleaded. 2. McCallum J considered that the FASC did not materially advance the case against Mr Rothfield: [15] "[11] The newspaper article is not the subject of a claim for defamation by Mr Dank. The proposition would appear to be that, by participating in an interview with the publishers of the television broadcast, and perhaps by reason of the material contained in his newspaper article, Mr Rothfield has brought himself within the scope of persons referred to by the Court of Appeal as being someone as to whom 'something further' has been established so as to make the person liable as a joint publisher, notwithstanding the absence of control over the final version of the broadcast and the mere fact of having contributed material to its contents. [12] In defending the pleading Mr Evatt, who appears for Mr Dank, openly conceded that it was drawn exclusively from what was publicly available in the newspaper article and the content of the television broadcast. He submitted, however, that it would be necessary for me, in order to determine the application, to view the broadcast, which I have done. Mr Evatt relied on the fact that, in the television broadcast, there is not only a depiction of the newspaper article and a number of quotes drawn from it but also footage of Mr Rothfield, 'there large as life being filmed by them'. [13] Mr Evatt submitted that, without Mr Rothfield, there was no story to be published in the television broadcast and that, 'he [Mr Rothfield] is the whole thing'. He asked rhetorically why it should not then be concluded on the strength of the particulars now provided that Mr Rothfield in some way knowingly 'conduced' to the publication of the television broadcast so as to fall within what the Court of Appeal said at [137]. [14] It is necessary in that context to consider the precise terms of the particulars now provided. As submitted by Mr Blackburn SC, who appears for Mr Rothfield, the particulars include a large number of allegations which are simply irrelevant to the present question. Otherwise, they consist of the identification of the words printed on the screen or said in the television broadcast which Mr Evatt submits it can be inferred are drawn directly from the newspaper article and from additional information which must have been provided to the Nine Network defendants by Mr Rothfield. [15] Taking the particulars at their highest, Mr Evatt relied upon the fact that, whereas the newspaper article does not draw a direct link between Mr Dank and the provision of 'horse drugs' to football players, the television broadcast does. Mr Evatt submitted that it must be inferred, or is at least open to be inferred, that it was Mr Rothfield who provided that information to the Nine Network defendants as so to conduce to the publication of the television broadcast. [16] It could scarcely be thought that the Nine Network defendants required Mr Rothfield's assistance to draw that connection. As Mr Evatt himself submitted, the story of the apprehended administration of 'horse drugs' to football players was at that time well circulated within the mass media. [17] I have given careful consideration to the particulars now provided to sustain the Webb v Bloch pleading. I do not think they take the matter any further than was either expressly pleaded or urged in submissions in the earlier argument concerning the pleading on the Webb v Bloch basis. As has been repeatedly noted by Mr Blackburn on behalf of Mr Rothfield, this is not a republication pleading and it does not pretend to be. [18] I do not think the new particulars satisfy the test stated by me in [the Strike Out Judgment] and approved by the Court of Appeal … They do not provide anything of further substance to demonstrate the capacity of [Dr Dank] to establish a claim against Mr Rothfield on the strength of those authorities." Reasoning 1. The application for leave to appeal concerns an interlocutory ruling on a matter of practice and procedure, even though the practical effect of the orders made in the Primary Judgment is to dismiss Dr Dank's proceedings against Mr Rothfield. The CA Judgment conveniently states the relevant principles for determining an application for leave to appeal against a judgment of this kind: [16] "[73] Appellate courts exercise particular caution in reviewing interlocutory rulings on matters of practice and procedure. The task of a party challenging a discretionary interlocutory ruling on such a matter is recognised as being a difficult one. [74] To succeed in challenging the exercise of a discretion, it is necessary to establish an error of legal principle; material error of fact; that the decision maker took into account some irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or arrived at a result so unreasonable or unjust as to suggest such an error. [75] Furthermore, ordinarily it is appropriate to grant leave to appeal from such a decision only where there is an issue of principle involved, or a question of general importance, or an injustice which is reasonably clear in the sense of going beyond what is reasonably arguable." [Citations omitted.] 1. Mr Rasmussen, who appeared for Dr Dank on the leave application, reiterated that Dr Dank was not seeking to make out a republication case, but was attempting to fit the case within the principles stated in Webb v Bloch. He contended that the leave application raised an issue of principle, namely the need to clarify the test for determining whether a defendant is liable as a co-publisher of defamatory matter. When it was put to Mr Rasmussen that the Court of Appeal had addressed that very question in the CA Judgment he said that the issue presented by the application was that McCallum J had simply applied a control test. 2. Mr Rasmussen did not suggest that the approach taken in the CA Judgment was novel or otherwise than in accordance with the established authorities. [17] The contention that McCallum J in the Primary Judgment simply applied a control test effectively repeated the argument made in relation to the ASC. That argument was rejected in the CA Judgment. McCallum J in the Strike Out Judgment did not make the error attributed to her in the earlier application for leave to appeal. Nor did she make the error in the Primary Judgment. 3. In our opinion, the leave application raises no issue of principle. At best, Dr Dank's submission is that McCallum J did not correctly apply well established principles to the attempt in the FASC to remedy the pleading deficiencies identified by her Honour and endorsed by the Court of Appeal. 4. Mr Rasmussen was also asked to identify any injustice that would be caused to Dr Dank if the application for leave to appeal was dismissed, bearing in mind that the proceedings will continue against the three remaining defendants (Nine Network, Mr Overton and Ms Harris). His response was that if Mr Rothfield is removed as a defendant, Dr Dank may be denied a forensic advantage in the proceedings. The advantage was said to flow from the likelihood that the Nine Network and its employees would rely on the defence under s 31(3) of the Defamation Act 2005 (NSW) that the defamatory matter expressed the opinion of a third party. Mr Rasmussen said that the presence of Mr Rothfield as a party would improve Dr Dank's chances of proving that the Nine Network and its employees had reasonable grounds to believe that Mr Rothfield did not honestly hold the opinion at the time the defamatory matter was published. Precisely why this would be the case was not made clear. In our view, it has not been shown that a refusal of leave to appeal would not create any significant injustice to Dr Dank. 5. It must be doubted whether Dr Dank could establish that McCallum J erred in concluding that the particulars in the FASC do not satisfy the principles laid down in Webb v Bloch for determining whether a defendant is a co-publisher of defamatory matter. But even if the contention is arguable, it raises no issue of principle and no significant injustice is caused to Dr Dank by denying leave to appeal. 6. The Court reiterates that prolonged interlocutory disputation of the kind that has occurred in this case is not to be encouraged. It is time that this case proceeded to trial. Conclusion 1. For these reasons the Court refused leave to appeal and ordered Dr Dank to pay Mr Rothfield's costs of the application. ********** Endnotes 1. Dank v Nine Network Australia Pty Ltd [2014] NSWSC 1938. 2. Supreme Court Act 1970 (NSW), s 101(2)(e) and (l). Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [4] (Ward JA, Emmett and Gleeson JJA agreeing). 3. Dank v Cronulla-Sutherland District Rugby League Footbal Club Ltd (No 3) [2013] NSWSC 1850. 4. [2013] NSWSC 1062. 5. [1928] HCA 50; 41 CLR 331. 6. [2013] NSWSC 1062 at [26]. 7. Strike Out Judgment at [22]. 8. Strike Out Judgment at [31]. 9. Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [144] (Ward JA, Emmett and Gleeson JJA agreeing). 10. CA Judgment at [129]. 11. CA Judgment at [137]. 12. Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156. 13. CA Judgment at [141]. 14. CA Judgment at [142]. 15. Primary Judgment [11]-[18]. 16. CA Judgment at [73]-[75]. 17. See, for example, Thiess v TCN Channel Nine Ltd (No 5) [1994] 1 Qd R 156 at 194-195 per curiam; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121] (McColl JA, Giles and Campbell JJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2015